Crowley Solicitors and employment law specialists;
The following article is a general summary on the subject of employment law and is not intended to be viewed as a complete statement of the law. Should a similar case come up in your business it is recommended that legal advice should be sought on a case by case basis.
To contact them to discuss you specific requirements, please contact; Deirdre Crowley Solicitor or Catherine-Elle O’Keefe Solicitor
Two recent decisions from the Equality Authority ruling in favour of employees discriminated at work, once again highlight the many areas of equality in the workplace that organisations need to be aware of when dealing with employees many changing needs. For employers and HR managers who find themselves either faced with employees who have a disability, who are pregnant or who have returned to the workplace from maternity leave, the following two cases may be of note.
In An Employee -v- An Employer (DEC-E2011-111)
She then wrote to her employer with a letter from her Consultant Orthopaedic Surgeon outlining her medical situation to date. It said that "She is now fit to resume her work on a part time basis initially. She would be fit for her normal work practice except for lifting heavy bags". The employer replying to the letter stated it was "not in a position to take you back if there is a risk of exasperation of your condition whilst in my employment". The letter then went on to say that it required "clarity in great detail the exact duties which you can undertake."
On reviewing this case, the Equality Officer set out the following general guidance for all employers faced with potentially disabled employees who might be dismissed:
1) the onus is on you as the employer to take certain steps;
2) you must ensure that you have fully established the factual position of impairment and the likely duration of this condition on the employee;
3) you must establish what, if any, special treatment and/or features that maybe available to allow the employee to become fully capable, this will then be further considered with regard to nominal costs, and,
4) you must keep the employee fully aware of proceedings and allow for their participation at every level.
The correspondence between the employer and the orthopaedic surgeon was also important - the employer knew the employee was not fit for all duties but could do some.
The employee was referred to a GP by the respondent but was not disputed by the company that the report from the GP nor its findings were shared with the employee. However it was decided that the report lacked clarity as to what recommendations it had for the employee's possible return to work, if at all.
Under the equality legislation, reasonable accommodation to assist disabled employees carry out their duties must be considered. Section 16 of the Employment Equality Act 1998 provides that a person with a disability must be first considered fully competent and capable of performing the duties attached to a particular post that is providing that the person could do so with the provision of special treatment or facilities and on condition that such elements did not give rise to more than a nominal cost to the employer.
Finding for the employee, the Equality Officer concluded:
In order to complete the two stage test and satisfy section 16 (3) of the Acts, I would have expected the respondent to have consulted with the complainant and sought to refer her to a specialist, particularly when the GP's report lacked clarity regarding the duration of her condition and it failed to match the complainant's ability to do the duties required for the job. I am satisfied that as the essence of the respondent's report is at odds with that of the complainant's medical opinion, there is then a definite requirement on the respondent to seek clarity. I am also satisfied that the lack of communication from the respondent on its medical report findings infringed the very principle for the need of strong communication and transparency between it and the complainant. Accordingly, I conclude that the respondent was not in possession of sufficient facts to be able to rely on a defence under section 16 of the Acts by not accommodating her return to work and that this amounts to discriminatory treatment in relation to her disability.
In addition to rewarding €15k for distress, the Equality Officer ruled that the company would have to meet with the employee to establish what her intentions were with regards returning to work. And in the event of her returning to work, they ruled that a communications strategy would have to be put in place to facilitate the future working relationship between the two parties. The company would also be required to assist the employee returning to work by ensuring that a work schedule was set in place and the employee’s medical condition was suitably assessed by an Occupational Physician with regard to her duties in the company, to be done within four months of the decision.
When looking at this case, it is possible to note that the threshold that must be met by employers in addressing the needs of its employees can be difficult to establish. This case clearly highlights the need for employers to be clear and instructive at every stage of the process. And where there is a conflict between the amount of medical evidence they have received, employers are obliged to seek their own expert medical advice for clarity. In this case open and honest communication was needed.
In Case 2
In the next case An Employee-v-An Employer (DEC-E2011-111)
In this case the employee was awarded €40,000 for discrimination while a further €10,000 was awarded for victimisation. In addition, the Equality Officer ordered that the company engage an appropriate person or organisation expert in the area of Employment Equality law to carry out a programme of training with respect to the Employment Equality Acts. The Equality Officer stated that every person employed by this company, whose work includes a management and/or supervisory role, this included the Manager and the Director, must complete this training programme within 12 months of the date of the decision.
In the above case, it is clear that the basic principles of equality legislation were breached. This isreflected in the amount awarded to the employee, which was €50,000. Furthermore, the fact that the Equality Officer felt it necessary to order that every person whose work included a management role to complete a training programme in equality law highlights to many the understated importance of ensuring that no culture of discrimination exists within an organisation. When employees, whose work includes a management role, are unaware of the appropriate way to deal with employees under the 9 grounds of discrimination, the employer organisation are exposed to liability. This is further re-enforced where a culture of discrimination exists against certain people within a particular workplace.
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